Who owns the tech to talk? The human toll of patent warfare

Patent battles between companies like Yahoo and Facebook have had a way of captivating the masses lately. Even when you don’t understand the legal or technical jargon at play, it’s easy to see the appeal. Like multimillion-dollar sports teams, it’s exciting to witness technology giants dueling in public. And like those sports teams, we have close personal affiliations with them. They’re platforms that many of us will use to browse the Web, email colleagues or connect with friends. Yet just as we can still function after our favorite team loses the Super Bowl, the outcome of these matches between tech titans is mostly inconsequential to our everyday lives.

That isn’t always the case. In some cases, the outcome of patent battles can touch parties well outside the ones duking it out for money in court. Where would your loyalties lie in the murky grey waters of a patent battle that could one day decide someone’s wellbeing?

The app that gives the gift of speech

Dana Nieder finds herself – and her family – in exactly that position. Her blog, “Uncommon Sense” is a journal chronicling her family’s life and her three year-old daughter Maya’s development, severely delayed by an unknown cause. Maya’s utterances are limited to more than one or two words. She communicates using a series of sounds, signs, and gestures, but her communication tool of choice has been her trusty Apple iPad. Depending on the outcome of a distant patent battle, that option may fall out from under them.

“The iPad is an emerging tool for us. Maya’s become more and more interested in it — thanks to the ability to watch videos and play games — as she gets older. Without a doubt, all of the apps bring incredibly fine motor practice for her,” Dana told Digital Trends. “The iPad is bright and colorful and interactive –obviously, kids love it. It’s more fun to work on tracing a letter on the iPad than on a sheet of paper — and also, that’s more fitting for her, skill-wise, right now.”

The biggest issue posed by Maya’s developmental delay has been her communication. After trial and error, app after app, Dana discovered “Speak For Yourself,” the quintessential Augmentative and Alternate Communication (AAC) iPad application that worked seamlessly in assisting Maya with her communication needs. According to Dana, other applications are not as comprehensive, not intuitive, and worse yet, overly complicated.

Speak For Yourself offers Maya 14,000 words to express herself. More importantly, it takes no more than two taps to get to any word. Competing AAC apps require memorization and a multitude of steps to get to a single word.

“Maya loves waffles. On SFY, she only needs to tap ‘eat’ then ‘waffle’ to say waffle. With other apps she may need to tap ‘want’ then ‘eat’ then ‘breakfast’ and then scroll to find ‘waffle.’ That’s a lot of very slow steps to finally get to the word ‘waffle,’” Dana explained.

Speak For Yourself iPad App

But Speak For Yourself may be in danger of disappearing. In late February, Semantic Compaction Systems Inc., which holds patents for Prentke Romich Company (PRC), a creator of AAC devices, filed a civil complaint against the creators of Speak For Yourself. According to the complaint, Speak For Yourself knowingly infringed on two of Semantic’s patents, among which one is a divisional patent filed in 1997. The patent in question, “Dynamic keyboard and method for dynamically redefining keys on a keyboard,” was filed in 1995. The complaint contends that SYF creators Renee Collender and Heidi LoStracco knowingly attended Semantic and PRC seminars, where they “learned of Plantiff’s product and patents.”

Speak For Yourself’s founders declined to expound on their plans for mounting a confident defense. “SFY believes this is an important learning tool. SFY denies the claims raised in the lawsuit and is prepared to vigorously defend and take all steps necessary to protect its legal interests and the interests of its customers,” Speak For Yourself told Digital Trends.

Stuck in the middle

Why spend the hundreds of dollars for an iPad, plus $299.99 for the AAC app, when PRC makes a device just for that purpose? Several justifiable motivations compelled Dana and Maya to reject traditional AAC devices.

The cost of a PRC device starts at an astounding $7,000 per unit, and can soar upward of $10,000. Luckily, Medicaid covers all or most of the cost, for those who are eligible. Even for those who are, that option forces caregivers to wait for the finalization of lengthy paperwork. The other option, as a PRC customer service representative explained to us, is to seek coverage from your insurance company. But comprehensive medical insurance is a luxury many living in the United States cannot afford, and even those who have it run the risk of rejection.

PRC ECO2 with ECOpoint

Dana and her husband were ineligible for Medicaid, and their insurance company wasn’t the most cooperative. But that wasn’t the only problem. According to Dana, the sheer bulk and weight of a PRC device could pose risks for Maya, has major balance issues.

What really set Speak For Yourself apart from PRC and competing language systems for Dana and Maya was SFY’s superior picture language, grammatical modeling and user experience. Other people, Dana pointed out, may prefer AAC apps including Proloquo2Go and TouchChat, or may even find PRC’s products to be their AAC device of choice. The biggest difference for Maya, Dana explains, comes down to consistency. “On SFY, the words all stay in the same spot, forever. Whether Maya has access to 2 words or 200 words, the word “waffle” will always take the same two taps in the two same spots. With other devices, things move.”

Two sides of the coin

Like many aging corporate entities , Semantic and PRC are threatened by the capabilities of today’s technology. Both companies have a right to rigorously protect their intellectual property, and potentially, to kill off more affordable competitors using their patents. But the individuals who may be most affected by the absence of a tool like Speak For Yourself may not be its creators, but users who have spent their time growing accustomed to a tool and have become dependent on it to go about living their daily lives.

Before you start pulling out the pitchforks, there’s a second perspective that you might want to ponder. Semantic founder Bruce Baker is a professor and entrepreneur, a distinguished and exemplary professional who dedicated his life to the AAC community through the invention (and patenting) of products that have bettered countless lives. He’s a far cry from a “patent troll.” Skeptics can witness the weight of his contributions in numerous YouTube videos of children surmounting all odds to be able to communicate using Bruce’s invention. In fact, for some children, the use of PRC’s AAC device is more functional than an iPad app, as their disability may render them incapable of pushing buttons with their hands and fingers.

The cloning game

Entrepreneurs today are faced with the possibility that their ideas may not only be quickly adopted by users, but cloned by competitors. Steve Jobs infamously disparaged Google for duplicating iOS with Android, Groupon sprouted a plethora of clones in just months, and in the gaming industry, some company somewhere is suing or being sued by Zygna over copycat games. Understandably, when an entrepreneur has dedicated his or her life to building an original idea, it’s arduous to watch imitators capture the market share with half the effort. The idea of a copycat may even seem like a crime from the perspective of the innovator.

In some ways, Dana’s dilemma over Speak For Yourself mirrors ongoing debates over piracy. Only a month ago, a study by university researchers discovered that piracy was resilient due to the inaccessibility of movies that viewers would otherwise have paid for. In other words, sometimes people want to do the right thing, but companies make it difficult or impossible.

In Dana’s case, a PRC iPad app doesn’t exist to buy. It’s no wonder. Offering an iPad app would disrupt PRC’s existing business model, inevitably cutting into its profits. But in the long term, offering a diverse array of competitive products will be the only way to survive. At present, Semantic only has a few more years remaining before the 20-year protection period provided by its patents expires, swinging open the doors for imitators.

Coping with copying

With the possibility that Maya’s favorite app could one day disappear, Dana sought advice on protecting her copies. For a former teacher and now a stay-athome therapist and mother for her daughter, jailbreaking the iPad, disconnecting the app from syncing, and backing up the files are disorienting suggestions. “Most of this stuff is way over my head, but I’ll tell you one thing, I’m not going to let this disappear on her,” she insists. “Could you imagine the cruelty of that? You finally have a way to express yourself to the people who love you, a way that you can finally be understood, and one day it just vanishes? Yeah, I don’t think so.”

Dana has discovered the perfect solution for her child, but now has to consider what to do if it is pulled from the market for copyright infringement. She has weighed her options, and may even resort to undermining the very objective PRC is pursuing by supporting an unlicensed clone.

Who does the patent system exist to serve?

The battle between Semantic and Speak for Yourself brings fresh perspective to the ongoing debate over the U.S. parent system. If nothing else, it illustrates how patents directly affect consumers in addition to – and sometimes more than — the innovators and competitors that go to court over them. When an innocent bystander like Dana stands in the crossfire of such patent warfare, we have to wonder: Should patents first and foremost protect the inventor, or the betterment of society? There’s no easy answer, particularly if you’re the patent owner.

Dana has her own perspective. “If you’re going to patent something, you better stay on top of it, research, refine, fine tune, and keep turning out products that will reach the people you’re trying to serve,” she said. “If you refuse, such as PRC has refused to create a communication app, then someone else should be allowed to step in and get the job done.”

Update: A PRC spokeperson responded to Digital Trends with the following statement: “We do not comment on pending litigation. PRC, like most companies, does not publicly share future development plans. However, we do recognize that new consumer technology is playing an important role in assistive technology, although it is unlikely to be the best option for all clients. We fully intend to participate in this space but will do so only in ways that support our mission and enable successful outcomes for our clients. That’s all we can share at this time.”